Chuck Raznikov

In December of 1965, a 13 year old middle school student named Mary Beth Tinker, wore a black arm band to school to protest US involvement in the Vietnam war. She had the support of her parents, but not the school authorities who decided that the situation was potentially disruptive. For that she was suspended. Tinker took the case to US court and three years later, it reached the US Supreme Court, who found that Tinker was in fact protected. And that wearing an arm band, is symbolic speech, protected by the first amendment of the constitution. The justices even said that the rights of the students do not end when they reach the school house gate. So we'll let that court case lead us to our essential question for this unit: How can we balance our individual rights with the public good.

Well I do guess that students have some rights after all. Welcome back to civil liberties 101. In this unit, we're going to talk about the history of the Bill of Rights. And a little bit about it's original intent. We're going to follow that up with the conversation about the first amendment, not only the rights, but the limits to those rights and the restrictions. You see the scale right behind me here. We're going to balance individual rights against the public good. You have rights to speak, you have rights to freedom of religion, you have rights to press, but they are not absolute. We'll talk a little bit about that.

Finally in this unit we're going to talk more about James Madison's intent with the Bill of Rights to create a flexible breathing document. For your AP exam, you're going to need to know a number of court cases. If you hear them come out of my mouth, if you see them on the screen behind me, and you're not familiar with them, and it gets by you, check your bonus materials for a full conversation. Let's get started.

As you remember, back in the 1780s, only 39 of the 55 delegates to the constitutional convention signed the document. There was still a very strong anti-federalist feeling at that time. And in order to squash these concerns, the Bill of Rights is added. Three years later, 1791, the Bill of Rights becomes a reality. You remember the Bill of Rights? The first word is the key. What's that word? Well it's Congress. Congress shall make no law establishing religion, and so for the first word. It means that the states and the individuals are free from the tyranny of the federal government. States are free to be able to restrict rights in any way that they see fit. And that's not going to change until the passage of the 14th amendment, in 1868 and the idea that the Supreme Court has about something called Selective Incorporation, where the states are going to be bound to follow the Bill of Rights. And it happens one at a time and very slowly over a period of time, we'll get to that in civil liberties 102.

Let's start with the rights that you have in the first amendment, you know them. The right to freedom of speech, the right to freedom of press, freedom of religion and you also have the right to peaceably assemble. There's one more right there, some people call it a right. It's called the establishment clause. And it's basically meant to serve as a guide about the separation between church and state, something that Thomas Jefferson was very vociferous about.

Let's start with our idea of religion. The Free Exercise Clause. In 2007 the College Board asked this as one of their questions. If you knew this information, first ball right down in the middle, you hit it out of the park. Free exercise means you have the right to freedom of religion. But are there any restrictions to that? Well in 1878, a man named Reynold tried to make sure that he had the right as a polygamist to have more than one wife. The United States and the Supreme Court said no and Reynold lost. So his rights began to be limited by what was perceived as the public good.

I happen to belong to a church called the church of the Three Day weekend. But my principal won't let me take Monday off. I don't know why, I think it's a violation of my establishment right, well I'm teasing here. But what becomes the limit of what becomes your individual right? The courts will weigh in on that. We'll give you more on your bonus materials.

The establishment clause is just that. There are limits of what the state can do. You might be asked something with regard to schools. The law says that I can't have the ten commandments posted in my classroom for example. Nor can I say that we're going to bow our heads for public prayer. These have been forbidden by the courts in my life time. There are other examples of that as well. Some of the most famous are called the flag salute cases and they occurred during the course of World War II. Jehova's Witness refused to stand and salute a piece of cloth, it was a violation of their religion. They lost at first, but then, the Supreme Court changed its mind. And these are together called the flag salute cases, and it's about the establishment and how the government cannot establish a religion. By the way, you're not going to see a religious invocation at your graduation in public school.

You should probably know something about the Lemon Test as well. We're not going to have a lot of time to talk about it here, check your bonus materials. But it is where the courts, in 1971, made a determination about the difference between secular and parochial education. And they're going to say if there is a secular intent, maybe public money can be spent on text books, but it can't be spent on purchasing bibles, that sort of thing.

Freedom of speech is the greatest right that exists under the first amendment, and has expanded over the course of the 20th century. And some judges, including Justice Douglas, considered it to be a penumbra or an umbrella over which all the rights are based upon. And so there isn't much in terms of restriction of freedom of speech. The one thing that can lead to something called the Prior restraint, is when there is imminent danger either of loss of life by what is said, or through national security.

We have something that we use, justice Oliver Wendell Holmes was famous for. It's called the Clear and Present Danger Test. And it comes from a very famous court case called Schenck versus United States. Schenck was a man who was a socialist, in a time that socialism was at it's peak, during the course of World War I. Socialist thought that World War I, was a "Capitalist dog fight". And Schenck by using mails encouraged the young men to not participate in the draft, don't go to war. The government found it a threat to national security, case went to court and Holmes says that, Schenck's behavior represented a clear and present danger. So that's just about the only limit. There are a few more and we'll get to them.

You don't get to be obscene for example. What is obscenity? As Justice Potter Stewart said, "I know it when I see it but I can't define it." So the Supreme Court left it to communities to decide what was obscene. You'll need to know Miller versus California in 1973.

There are few other restrictions just like Schenck spoke in a time of great national crisis, you know the Korematsu case during the course of World War II. Americans of Japanese descent are sent away to internment camps, is that legal in the ordinary sense? Well no it's a violation of a writ of habeas corpus. But under the clear and present danger standard, the court allowed for the evacuation of Japanese American. Interestingly enough, they never evacuated German Americans or Italian Americans. And many people after the fact thought that individual rights were sacrificed for what was a false public good. Think of it this way, freedom of speech has expanded to such a point, that we now have what we call freedom for the thought that we hate. If we're going to give the American Nazi Party the right to march in Skokie Illinois which is a town just proportionally Jewish. If we're going to give the Cook class clan the right to have a public access television station in Kansas City, Missouri, then pretty much anything goes at this point. So keep that in mind, first amendment has the broadest protection.

When it comes to freedom of the press, there is very little that can be censored before the fact, again prior restraint. If it is an imminent danger to the national security, not going to happen. If it presents clear and present danger, same thing. You may know the Pentagon Papers. And those are documents, they were classified documents that were taken by a government employee Daniel Ellsberg, that included information that was a little bit unsavory about American conduct in south east Asia. And he took them and passed them on to the New York times. Government tried for a prior restraint to stop Mr. Ellsberg from printing it, to stop the New York Times and they were not successful in court. Got to print those, so you'll know the Pentagon Papers. There are other examples as well.

In the 1980s, a magazine called the Progressive Magazine, got a hold of the secret of how to make a hydrogen bomb. They didn't get it from a government document. One of their writers figured it out from a physics textbook and materials in the library. Can I take materials from the library and a physics textbook and do it and print it in a Magazine? Government said no, but Progressive printed the magazine. So you can see that very little is going to be censored before the fact.

You'll also need to know the difference between Libel and Slander. You'll hear in civil liberties 102 about a case called Near versus Minnesota, in which the state of Minnesota tried to censure newspaper publication. Government threw that out and incorporated that into the Bill of Rights, and we'll talk about that 102. But, know the difference between libel and slander. If I say something and it is false and malicious, and that I could have known that it was true, that's called Libel. Excuse me, I mispoke. If I print that that's libel. I can be sued after the fact. However, slander is the same thing, it's just the spoken word. The only place that slander is protected to my knowledge, is the floor of the United States Congress.

According to Madison, he wanted the Bill of Rights to be a flexible breathing document. He knew that the times of the day would change, there were no airplanes. There were no automobiles, there were no computers, you get all that. But they also knew they didn't want to change the constitution every time something changed in terms of the culture or technology. And so they wanted terms that could live with the times, perhaps to be interpreted by the judges of the time. He called it a flexible breathing document. So let's take a look at some of that.

The College Board will expect you to know the core of the fourth amendment and some of the fourth amendment cases. Mapp versus Ohio is a court case we'll do in 102. But fourth says that there shall be probable cause to issue a warrant, but also there shall be no unreasonable searches. Clearly, what's unreasonable to you, may not be unreasonable to me. Is it unreasonable for your employer to go through your e-mail? Is it unreasonable for an employer or government to ask you to submit to a drug screening without probable cause? These are issues for the courts of each generation, at least I think that's the way that Madison envisioned it.

The fourth amendment, you know of course that there shall be no cruel and unusual punishment. And this is the eighth amendment and it comes from the old English law and it comes from the English Bill of Rights. You'll actually see those phrases that they lifted from the English Bill of Rights. But what is cruel and unusual punishment? That was meant at the time that there shall be no physical or corporal punishment, and it has been incorporated that way. Now there is conversation that there may be special circumstances. And you've heard all these staff about WaterBoarding in Guantanamo Bay. Is it ever reasonable to use a physical punishment? Is it cruel and unusual punishment for example, that the state of Michigan has passed a law that says, if you deal a certain amount of cocaine, that it would be life in prison without the possibility of parole? Is that excessive? There's also excessive fines in bails. Is that cruel and unusual? Is it cruel and unusual that a 10 year old boy in Florida was charged with capital murder as an adult, 10years old? These are the issues for the courts, again flexible and breathing.

Maybe one of the most interesting parts of the Bill of Rights, is the ninth amendment. And the framers knew that, they couldn't list everything and so they're going to tell us that people retain rights that are not specifically enumerated or listed in the constitution. But what are those rights? Eventually, they're going to be interpreted by the judges of each generation. Does that mean that you have the right to privacy, as Norma McCorvey asserted, in the Roe versus Wade case in 1973? Well you be the judge of that.

There you have it, the core of the Bill of Rights. You can definitely check your bonus materials for the court cases that are important to know in the Bill of Rights. But remember, that the original intent was to try to provide protection against tyranny from the federal government. Remember your freedoms in the first amendment, remember that the 4th amendment has to do with search and seizure. Remember that the 8th amendment has to do with cruel and unusual punishment, the 9th privacy or enumerated rights and you should do fine. Now get ready for quiz time, we'll see you on the other side.